DALLAS - A DNA test on a single hair has cast doubt on the guilt of a Texas man who was put to death 10 years ago for a liquor-store murder _ an execution that went forward after then-Gov. George W. Bush's staff failed to tell him the condemned man was asking for genetic analysis of the strand.

The hair had been the only piece of physical evidence linking Claude Jones to the crime scene. But the recently completed DNA analysis found it did not belong to Jones and instead may have come from the murder victim.

Barry Scheck, co-founder of the Innocence Project, a New York legal center that uses DNA to exonerate inmates and worked on Jones' case, acknowledged that the hair doesn't prove an innocent man was put to death. But he said the findings mean the evidence was insufficient under Texas law to convict Jones.

Jones, a career criminal who steadfastly denied killing the liquor store owner, was executed by injection on Dec.

7, 2000, in the closing weeks of Bush's term as governor and in the middle of the turbulent recount dispute in Florida that ended with Bush elected president.

As the execution drew near, Jones was pressing the governor's office for permission to do a DNA test on the hair. But the briefing papers Bush was given by his staff didn't include the request for the testing, and Bush denied a reprieve, according to state documents obtained by the Innocence Project.

Scheck said he believes «to a moral certainty» that Bush would have granted a 30-day reprieve had he known Jones was seeking DNA testing.

«It is absolutely outrageous that no one told him that Claude Jones was asking for a DNA test,» Scheck said. «If you can't rely on the governor's staff to inform him, something is really wrong with the system.» Bush had previously shown a willingness to test DNA evidence that could prove guilt or innocence in death penalty cases. Earlier in 2000, he had granted a reprieve to a death row inmate so that Scheck and other attorneys could have evidence tested. The test confirmed the man's guilt and he was executed.

A spokesman for Bush, who is on a book tour, declined to comment Thursday.

The other primary evidence against Jones came from one of two alleged accomplices: Timothy Jordan, who did not enter the liquor store but was believed to have planned the robbery and provided the gun. Jordan testified that Jones told him he was the triggerman. However, under Texas law, accomplice testimony isn't enough to convict someone and must be supported by other evidence. That other evidence was the hair.

«There was not enough evidence to convict, and he shouldn't have been executed,» Scheck said.

Scheck, a death-penalty opponent, said the case shows that the risk of a tragic mistake by the legal system is just too high. «Reasonable people can disagree about the moral appropriateness of the death penalty. The issue that has arisen is the risk of executing the wrong person,» he said.

San Jacinto County District Attorney Bill Burnett, who prosecuted the case, died earlier this year.

«I still think he was guilty,» Joe Hilzendager, the murder victim's brother, said Thursday. «I think they executed the right man.» Former San Jacinto County Sheriff Lacy Rogers also said he is convinced Jones committed the crime _ «without a doubt in my mind.» In the nearly 35 years since capital punishment was reinstated in the U.S., there has never been a case in which someone was definitively proven innocent after being executed. That would be an explosive finding, since it would corroborate what opponents of the death penalty have long argued: that the legal system is flawed and that capital punishment could result in a grave and irreversible error.

Jones was condemned to die for the 1989 killing of liquor store owner Allen Hilzendager, who was shot three times outside the town of Point Blank, population 559.

Authorities said his getaway driver was Danny Dixon, previously convicted of shooting a girl between the eyes and burying her in a cemetery.

During the trial, a forensic expert testified that he examined the hair under a microscope and concluded that it could have come from Jones but not from Dixon or the store owner. No DNA test was performed for the trial.

Prosecutors also hammered on Jones' brutal past. While serving a 21-year prison sentence in Kansas, he poured a flammable liquid on his cellmate and set him on fire, killing him.

Jones was executed at age 60, the last person put to death during Bush's time as governor. In his final statement, Jones did not acknowledge guilt but told the Hilzendager family he hoped his death «can bring some closure to y'all. I am sorry for your loss and hey, I love all y'all.

Let's go.» More than three years after the execution, Jordan recanted his claim that Jones admitted to being the triggerman. In an affidavit, Jordan said he was scared, and «I testified to what they told me to say.» Texas is far and away the No. 1 death penalty state, having executed 464 people over the past three decades.

The Jones case is second time this year that the guilt of an executed Texas inmate was thrown into doubt. Cameron Todd Willingham was put to death in 2004 after being convicted of setting the 1991 fire that killed his three daughters. But several renowned experts said earlier this year that the investigation of the fire was so flawed that the arson finding can't be supported.

The hair in the Jones case was tested 10 years after the execution at the request of his son Duane, along with the Innocence Project, other groups and The Texas Observer magazine. Prosecutors agreed to the testing.

«At the very least, if they had tested his DNA before he was executed, he could have gotten a new trial or his sentence overturned or changed,» Duane Jones said Thursday. He said his father «told me that he had robbed banks, that he was a thief. But he wasn't a person who would go out and murder someone on the street.»

Texas Observer

DNA Tests Undermine Evidence in Texas Execution New results show Claude Jones was put to death on flawed evidence.

by DAVE MANN - Published on: Thursday, November 11, 2010 Claude Jones always claimed that he wasn’t the man who walked into an East Texas liquor store in 1989 and shot the owner. He professed his innocence right up until the moment he was strapped to a gurney in the Texas execution chamber and put to death on Dec. 7, 2000. His murder conviction was based on a single piece of forensic evidence recovered from the crime scene—a strand of hair—that prosecutors claimed belonged to Jones.

But DNA tests completed this week at the request of the Observer and the New York-based Innocence Project show the hair didn’t belong to Jones after all. The day before his death in December 2000, Jones asked for a stay of execution so the strand of hair could be submitted for DNA testing. He was denied by then-Gov. George W. Bush.

A decade later, the results of DNA testing not only undermine the evidence that convicted Jones, but raise the possibility that Texas executed an innocent man. The DNA tests—conducted by Mitotyping Technologies, a private lab in State College, Pa., and first reported by the Observer on Thursday—show the hair belonged to the victim of the shooting, Allen Hilzendager, the 44-year-old owner of the liquor store.

Because the DNA testing doesn’t implicate another shooter, the results don’t prove Jones’ innocence. But the hair was the only piece of evidence that placed Jones at the crime scene. So while the results don’t exonerate him, they raise serious doubts about his guilt. As with the now-infamous Cameron Todd Willingham arson case, the key forensic evidence in a Texas death penalty case has now been debunked.

“The DNA results prove that testimony about the hair sample on which this entire case rests was just wrong,” said Barry Scheck, co-founder of the Innocence Project, in a statement. “Unreliable forensic science and a completely inadequate post-conviction review process cost Claude Jones his life.” Jones was 60 years old when he was executed on December 7, 2000—the last man put to death by then-Gov. Bush. The Observer and three innocence groups recently obtained the hair after a three-year court battle and submitted it for mitochondrial DNA testing.

That technology didn’t exist when Jones was convicted in 1990. But the DNA test had been developed by 2000, when Jones’ execution date was nearing. He requested a stay of execution from two Texas courts and from the governor’s office in order to test the hair evidence and prove his innocence. His requests were all denied.

Documents show that attorneys in the governor’s office failed to inform Bush that DNA evidence might exonerate Jones. Bush, a proponent of DNA testing in death penalty cases, had previously halted another execution so that key DNA evidence could be examined. Without knowing that Jones wanted DNA testing, Bush let the execution go forward.

Had the DNA tests been conducted before his execution, Jones might still be alive today. Scheck says these results, had they been obtained 10 years ago, probably would have led judges to throw out Jones’ conviction and grant him a new trial.

“I’m convinced that [Bush] would have granted this reprieve had he known about it," Scheck told the Observer on Thursday. "I find it just astonishing that he wasn’t told. That’s a pretty serious breakdown in the criminal justice system." *** Claude Jones was no saint. Born in Houston in 1940, he was arrested numerous times and spent three stints in prison on robbery, assault and theft charges. While serving an eight-year sentence in a Kansas prison, Jones allegedly doused another inmate with lighter fluid and set him on fire.

But Jones wasn’t executed for his previous crimes. He was put to death for what allegedly happened on the afternoon of Nov. 14, 1989.

Jones and an accomplice named Kerry Daniel Dixon pulled into Zell’s liquor store in the East Texas town of Point Blank, about 80 miles northeast of Houston. They had a .357 magnum revolver given to them by a third man, Timothy Jordan.

Either Jones or Dixon remained in the pickup truck, while the other went inside and shot the store’s owner, 44-year-old Allen Hilzendager, three times and made off with several hundred dollars from the cash register.

The question is, which of them committed the shooting? Witnesses who saw the crime from across the street couldn’t positively identify which man they saw leave the store. The third accomplice, Timothy Jordan, would testify that Jones confessed to the shooting. (Jordan later recanted his testimony, claiming police told him what to say in exchange for a lesser charge. Jordan, Dixon and Jones had committed a string of robberies, though the liquor store heist was the only one that involved murder. Jordan was sent to prison for 10 years. Dixon was given a 60-year sentence.) But Jordan’s testimony wasn’t enough to convict Jones of murder. In Texas, accomplice testimony can’t be the sole basis for a conviction; it must be corroborated by independent evidence.

At Jones’ 1990 trial in rural San Jacinto County, prosecutors offered only one piece of corroborating evidence—the strand of hair recovered from the liquor store counter.

Stephen Robertson, a forensic expert hired by the Department of Public Safety, examined the hair under a microscope—an inaccurate visual analysis that was common at the time. Robertson compared the hair with samples taken from 15 people who entered the store the day of the murder. He testified at trial that he believed the hair matched Jones. But he conceded, “Technology has not advanced where we can tell you that this hair came from that person,” he told the jury, according to court records. “Can’t be done.” But in 2000, when Jones was fighting for his life, it could be done. On December 6, 2000, the day before the execution, Jones’ attorneys filed a last-ditch motion for a stay—in district court and with the Texas Court of Criminal Appeals—so they could submit the strand of hair for mitochondrial DNA testing. Both courts turned him down.

Jones’ last hope was Gov. Bush, who in December 2000 was embroiled in the Florida recount controversy that followed the presidential election. Bush had already overseen the execution of 151 people during his governorship, but he’d also expressed support for DNA testing. Earlier that year, Bush had granted a 30-day stay to Ricky McGinn so that DNA testing could be conducted on key evidence in the case. (The tests would prove McGinn’s guilt and he was executed.) Bush, explaining his decision in the McGinn case to CNN in June 2000, said, “To the extent that DNA can prove for certain innocence or guilt, I think we need to use DNA.” But Bush was never told about Jones’ request for DNA testing. Through a public-information request, the Innocence Project obtained the Dec. 7, 2000, memo that lawyers in the governor’s office sent to Bush, briefing him on the circumstances of Jones’ pending execution. The four-page memo doesn’t mention Jones’ request for DNA testing. Rather, it describes the disputed hair evidence as “testimony from a chemist employed by DPS that the hair samples taken from the crime scene matched those taken from Jones.” The memo from the general counsel’s office concludes, “At this time, I do not recommend that a reprieve be granted.” Jones was executed a few hours later.

But the strand of hair survived, tucked away in a box in the San Jacinto County courthouse for years.

In fall 2007, the Observer, the national Innocence Project, the Innocence Project of Texas and the Texas Innocence Network filed a lawsuit to obtain the hair for DNA testing.

The county district attorney’s office fought release of the hair sample and announced its intention to destroy it. But in June 2010, Judge Paul Murphy ruled in favor of the Observer and the innocence groups, and ordered prosecutors to turn over the remaining hair evidence for DNA testing.

Anti-death penalty advocates had hoped that the Jones case would provide the first-ever DNA exoneration of an executed person. While quite a few death penalty cases have been called into question, including several in Texas, no executed prisoners have been proven innocent by DNA testing, widely considered the most reliable form of forensic evidence.

Instead, Jones' case now falls into the category of a highly questionable execution—a case that may not have resulted in a conviction were it tried with modern forensic science. In that respect, it's much like the case of Cameron Todd Willingham, executed in 2004 for starting a house fire that killed his three children. Fire scientists now say the arson evidence used to convict Willingham was flawed. (The Forensic Science Commission will continue its investigation of the Willingham case at hearing on Nov. 19.) Still, the revelations in the Jones case raise more questions about how Texas administers the ultimate form of punishment.

“My father never claimed to be a saint, but he always maintained that he didn’t commit this murder,” said Claude Jones’ son, Duane, in a statement released by the Innocence Project. Duane Jones didn’t know his father growing up and met Claude Jones when he was on death row. “Knowing that these DNA results support his innocence means so much to me, my son in the military and the rest of my family. I hope these results will serve as a wakeup call to everyone that serious problems exist in the criminal justice system that must be fixed if our society is to continue using the death penalty.”